Environmental groups sue BNSF, coal companies

Groups allege violation of Clean Water Act

THE BELLINGHAM HERALDJune 5, 2013 

Coal Port

This May 29, 2012 file photo shows a coal train leaving Seattle for British Columbia.

ELAINE THOMPSON — ASSOCIATED PRESS

Following up on an earlier threat, a coalition of environmental groups has filed a lawsuit in U.S. District Court in Seattle, accusing BNSF Railway Co. and several coal companies of violating the Clean Water Act.

The lawsuit contends that coal is escaping into streams and marine waters from every coal train that passes along the route from Wyoming and Montana mines to existing export terminals in British Columbia. The same groups sent an official "notice of intent to sue" to the defendants two months ago.

"Defendants have discharged, are discharging, and will continue to discharge coal pollutants into waters of the U.S. by each and every one of the defendants' trains and rail cars that carry coal," the lawsuit states.

Plaintiffs include Bellingham's RE Sources for Sustainable Communities, the Sierra Club, Puget Soundkeeper Alliance, Columbia Riverkeeper, and Friends of the Columbia Gorge.

BNSF spokeswoman Suann Lundsberg said the lawsuit's allegations are untrue.

"Sierra Club's lawsuit is meritless and nothing more than a publicity stunt meant to stop the permitting of multi-commodity export terminals in the Pacific Northwest," Lunsberg said in an email. "The Sierra Club adamantly opposes coal and will go to any lengths to eliminate it, even at the expense of all other Washington exports.

"BNSF has safely hauled coal in Washington for decades, and is committed to preventing coal dust from escaping while in transit. In compliance with BNSF rules, exporters have committed to treat all coal shipments with methods effective at preventing coal dust from escaping during transit," Lundsberg's email said.

At a Wednesday, June 5, press conference, spokesmen for the plaintiffs made it clear that the lawsuit is part of the ongoing campaign to stop construction of new coal export terminals, one of which is the Gateway Pacific Terminal that SSA Marine wants to build at Whatcom County's Cherry Point.

"We have a problem right now that is quite severe," said Michael Lang of Friends of the Columbia Gorge. "It will be made levels of magnitude worse" if new coal terminals attract more trainloads of coal to be shipped from Wyoming and Montana mines to Northwest ports.

Charles Tebbutt, the attorney who filed the case, said no discharges are allowed into water bodies without federal permits, and neither the railroad nor the coal companies have permits to cover their discharge of coal from passing trains. Tebbutt said the Clean Water Act provides penalties of $37,500 a day for violations.

Tebbutt also said it doesn't matter whether the coal is dangerous to the environment. As he explained it, the act prohibits discharge of any substance into the water without a federal permit.

"Any discharge of any foreign substance ... is a violation of the Clean Water Act," Tebbutt said.

He said the railroad and the coal companies need to take steps to eliminate their discharges if they want to get coal trains into compliance with federal law.

"There are very simple ways to fix the problem," Tebbutt said.

Railroads and coal companies attempt to reduce dust by coating loaded cars with chemicals called surfectants, but Tebbutt said the surfectants themselves are pollutants.

Chris Wilke, executive director of Puget Soundkeeper Alliance, said he doesn't think coal that falls into streams and marine waters is harmless. He said it contains heavy metals that could harm fish and the creatures that eat them, including whales and people.

Wilke also contended that the discharge of coal from passing trains is far from rare.

"We found coal in almost all of the locations that we checked," Wilke said.

Much of the concern appears to be centered on the Columbia Gorge.

Michael Lang, conservation director of Friends of the Columbia Gorge, said coal pollution there is severe.

"In some places the coal is several inches thick along the river," Lang said. "It was truly shocking to learn the scope of the problem that already exists today."

The lawsuit asks the court to order the defendants to stop illegal discharges, and stop shipping coal in uncovered cars. It also asks the court to order the defendants to "remove coal pollutants that are in place or otherwise recoverable from receiving water bodies."

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com. Read his Politics blog at blogs.bellinghamherald.com/politics or follow him on Twitter at @bhamheraldpolitics.

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